The Thomist Vol. 59, No. 2 (April 1995), 279-311 Reprinted in: J. A. di Noia and Romanus Cessario (ed.), Veritatis splendor and the Renewal of Moral Theology, Princeton-Huntington-Chicago 1999, 241-268.

INTENTIONAL ACTIONS AND THE MEANING OF OBJECT: A REPLY TO RICHARD MCCORMICK

MARTIN RHONHEIMER

IN HIS ARTICLE, “Some Early Reactions to Veritatis Splendor,” 1 Richard McCormick discusses my article on Veritatis Splendor and its teaching about intrinsically evil acts.2 He challenges my defence of the encyclical’s views and poses some concrete questions for me. At the same time, McCormick complains once more about what he calls the encyclical’s misrepresentation of the proportionalists’ views, as well as about a general misunderstanding on the part of critics of what proportionalism, consequentialism, and their teleological approach are really about. To begin with, I find it somewhat surprising that McCormick presents intentional understanding of human acts and their objects as something discovered by proportionalists. By this he obscures the fact that most critics of proportionalism, consequentialism, and so-called “teleological ethics” (I will not further distinguish these different labels) work with what is precisely an intentional conception of moral objects.3 For example, my own 1 Theo logical Stu dies 55(199 4): 48 1-50 6; see 5 00-5 02; 5 04. 2 Martin Rhonheimer, “‘Intrinsically Evil Acts’ and the Moral Viewpoint: Clarifying a Central Teaching of Veritatis Splendor,” T he Thorn ist 58 (1994): 1-39. 3 There may he some exce ptions, for example, Russell Hittinger; see his article, “The Pop e and the Theorists,” Crisis 11 (Dece mber 1993) : 31-36 . G.E. M . Anscom be, one o f the first and mo st incisive critics of consequentialism, attacked it on the grounds of an intentional concept of action, developed in her famous stud y Intention (Oxford : Basil Blackwell, 1957 ; 2nd ed. 1963 ). Cf. Anscom be, Contrac eption an d Chastit (London: Catholic Truth Society, 1975).

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__________________________________________________________________ 280 MARTIN RHONHEIMER position, situated in the context of virtue ethics,4 is one in which an intentional conception action plays a crucial role. McCormick seems to evade this level of argument, however, and in this way appears to beg the question about one of the central issues in the debate. At the same, it is not entirely surprising that McCormick had some difficulty in dealing with the central point of my argument (and of similar arguments),5 because his methodology is so entangled in the categories of the strongly legalistic and casuistic manual tradition.6 In my article, I explicitly dealt with the difficulty of understanding a virtue and first-person-centered view from the perspective of the manual tradition: It will, however, never be possible to render intelligible this moral methodology on the grounds of an ethic which from the beginning is concerned with justifying “moral norms.” This is so because in such an approach the distinction between “object” and further intentions necessarily drops out of view. The only thing which a norm ethic can produce in the way of an action theory are the particular “occurrences” (“ actions”) on the one hand, and the consequences

___________________________________________________________ 4 See M artin Rhonheimer, “‘Ethics of Norms’ and the Lost Virtues. Searching the Roots of the Crisis of Ethical Reasoning,” Anthropotes IX, 2 (1993 ) : 231 -243 ; La prospettiva della morale. Fonda menti dell’etica philosophica (Rome : Arma ndo, 199 4) ; Praktische Vernun ft und Vernün ftigkeit der Praxis. Handlungstheorie bei Thomas von Aquin in ihrer Entstehung aus dem Problemkontext der aristotelischen Ethik (Berlin: Akademie Verlag, 1994). Contrary to the impression which M cCo rmick gives in his article, I do not share the Grisez-Finnis theory about basic goods and practical reason, nor do I argue on its grounds, in spite of many important com mon views. 5 See W illiam E . May, Mo ral Absolutes. Catho lic Tradition, Current Trend s, and the Truth (Milwaukee, Wise: Marquette University Press, 1989) John Finnis, Moral Absolutes: Tradition, Revision, and Truth (W ashington, D .C.: T he Catholic University of America Press, 1991) ; Alasd air MacIntyre , “Ho w Can W e Lea rn W hat Veritatis Splendo r Has To Teach?” The T hom ist 58 (1994) :171-195. See also Robert P. Geo rge’s and Had ley’s Arkes’s contributions to “The Splendor of Truth: A Symposium,” published in First Things (January 1 994 ) and rather unfairly criticized in McCormick’s article. 6 This is also the case with B runo Schüller and his disciples; see the recent paper by W erner W olbert, “Die ‘in sich schlechten’ Handlungen und der Konsequentialismus,” Moraltheologie im Abseits? Antwort auf die Enzyklika “Veritatis Splendor,” ed. Dietmar Mieth (Freiburg: Herder, 1994), 88-109.

_________________________________________________________________ A REPLY TO RICHARD MCCORMICK 281 brought about by them, on the other. If an agent intends the best consequences, then it is these which come to be designated the “object” of his “act.” (21-22)

McCormick’s article thus confirms this assertion, since the author finally arrives at the conclusion that talking about “objects” and wrongness ex obiecto is not a helpful terminology and should be abandoned.7 I shall return to this point. The questions put to me by McCormick, and which I shall try to answer, deal with the following issues: 1) The meaning of “object” (which is, as he rightly states, the central point) ; 2) the closely related “question of intentionality”; and 3) what is according to McCormick “a key question” for my position: “Why in choosing to kill a person or deceive a person, does one necessarily ‘take a position with his will with regard to good “and “evil” ‘?” 8 Finally, I shall also have to say something about what McCormick falsely calls the encyclical’s misrepresentation of proportionalism, because this is intimately connected with all the rest. “Object” in Veritatis Splendor: Not Just a “Kind of Behavior” Let me start by specifying some points about Veritatis Splendor’s teaching. In his presentation of the encyclical’s understanding of the “object,” McCormick says that according to the encyclical (and presumably also to me) an object simply is “a freely chosen kind of behavior.” But it seems that he fails to grasp what the encyclical’s text wants to stress in this passage. Its intention is not to tell the reader that objects are “kinds of behavior,” but that objects are to be understood as something related to the acting person’s choices. Therefore, the point made by the encyclical is about intention involved in choice of kinds of behavior and not about “kinds of behavior” as such. 7 He had already drawn the sa me conclusion in his article, “D ocument Beg s Many Legitimate Moral Questions,” Nation al Cath olic Rep orter (October 15, 199 3): 17 . 8 McCormick, “Some Early Reactions to Veritatis Splendor,” 501.

__________________________________________________________________ 282 MARTIN RHONHEIMER The entire text (which I quoted at the very beginning of my article) runs as follows: In order to be able to grasp the object of an act which specifies that act morally, it is therefore necessary to place oneself in the perspective of the acting person (VSm n. 78).

What Veritatis Splendor is saying is this: Do not look at human acts “from outside”; do not focus only on what happens, what is the case, and on the state of affairs brought about by a behavioral performance; but rather put yourself in the perspective of the acting subject, for whom “actions” or “behaviors are objects of choice, informed by reason, as immediate goals of the will. Thus the encyclical continues: The object of the act of willing is in fact a freely chosen kind of beha viour . . .. By the object of a given moral act, then, one cannot mean a process or an event of the merely physical order, to be assessed on the basis of its ability to bring about a given state of affairs in the outside world. Rather, that object is the pro ximate end of a deliberate decision which determ ines the a ct of willing on the part of the acting person. (VS, n. 78, emphasis added)

In his reading of this passage, McCormick’s attention seems to be entirely conditioned by his own methodology--which adopts the standpoint of the observer, as is typical for norm-ethics and casuistry--and by the argumentative problems that logically arise in this perspective. Therefore he does not enter at all into the rather sophisticated argument set forth by the encyclical. It is significant that immediately after this statement Veritatis Splendor quotes n. 1761 of the Catechism of the Catholic Church (which also focuses on choice). “There are certain specific kinds of behavior that are always wrong to choose, because choosing them involves a disorder of the will, that is, a moral evil.” In n. 1755, the Catechism gives an example, fornication, to illustrate its teaching. Clearly, “fornication” is not simply a material behavioral pattern (this would be “sexual intercourse between male and female”). The encyclical’s verdict about moral evil is not about this pattern, but about the choice of it, that is, about a specific case of this choice, called “fornication,” that is describable

__________________________________________________________________ A REPLY TO RICHARD MC CORMICK 283 in universal terms (as a “species “of human act), a description that applies to a multiplicity of particular acts independently from further circumstances or consequences. Notice that the description of an (observable) behavioral pattern as such and the description of the choice of this behavior may be two quite different things.9 Let me spell this out in more detail. When Jim chooses to have sexual intercourse with Jane, Jim actually not only chooses a behavioral pattern (to have intercourse with a female, or with Jane), because Jane either is or is not his wife. This is a circumstance relevant for practical reason that judges about the corresponding behavior as a practical good to be either pursued or avoided. It is a circumstance that, in this specific situation, is given and is thus prior to choice. It is not, however, inherent in the behavioral pattern as such; it is recognizable only by reason and it confers on the chosen behavior an inherent, though not simply naturally given, “form.” The behavior could not be chosen at all apart from this “form.” 10 Therefore, provided Jim and Jane are not married, Jim necessarily chooses, not just “intercourse with a female,” but “fornication.” 11 Accordingly, the concrete behavior considered as an object of choice is much more than merely a material behavioral pattern. In choosing a concrete behavioral pattern, one necessarily chooses it “under a description,” which is precisely the description of an intent formed by reason. Sexual intercourse, as a chosen kind of behavior, is the object of a judgment of reason of the following sort: “Having sexual intercourse with Jane, who is 9 The prob lem is that in common speech the choice and the corresponding act tend to be lumped together under a common designation derived from some characteristic behavioral aspects of the act. In reality, however, the two can never be equated one with the other. Here, as John Finnis has pointed out, “common speech . . . is not a safe guide” (Mo ral Absolutes, 72). 10 T hat is why (as I pointed out in sections four and six of my article) Aquinas calls objects “forms conceived by reason. 11 If Jim or Jane is (or both are) married, but not with each other, Jim and Jane choo se what one calls “adultery.” That is the classic examp le mentioned by Aquinas (Sum ma theologia e, I-II, q. 18, a. 5 ad 3); it illustrates well the difference betwee n genus naturae and genu s moris.

__________________________________________________________________ 284 MARTIN RHONHEIMER not my wife (or even is another’s wife, etc.), is a good here and now to be pursued.” This precisely indicates an intention that defines the act in question. If there were no intention--which is impossible--there would be no reason, nor would there be a perceived good to be pursued. There would exist nothing but an observable behavioral pattern, not a human act. Thus the chosen act is precisely what Veritatis Splendor calls the “proximate end of the [choosing] will.” As such, the very act includes an intention, formed by reason, without which it could not be described as a human act. This intention (choice) of Jim to have intercourse with somebody who is not his spouse is perfectly describable and morally qualifiable independently from further intentions (e.g., the intention of doing it for the sake of obtaining some information necessary to save the lives of others). The encyclical’s understanding of the object of a human act explains the formulation in n. 79, which I quoted in the opening section of my article. This sentence, which contains the key formulation, is, however, mostly ignored by revisionists. The verdict here concerns “choice of certain kinds of behavior.” In VS, n. 80, “intrinsical evil” is referred to the object, and this again means: to kinds of behavior, insofar as they are objects of choice. What is called “intrinsically evil,” therefore, is concrete choice, describable in behavioral terms, that cannot be reduced to simple “behavior,” however, because every choice includes an intention of the will and a corresponding judgment of reason. That is also the reason why the encyclical speaks here about ulterior intentions, and not about intention as such: because “object” and intention are not mutually exclusive terms. There is some intentionality required so that an object of a human act can be constituted.12 12 If it is said that the “object is a chosen act, describable only by referring to an intention, one might wonder how one can then simultaneously affirm--as does Veritatis Splendor, along with traditional moral theolog y--that the good ness of the (choosing) will depends on the object. Someone might claim that we should be able to describe the object as something “given” and without immediate reference to an intention. T he solution of this appa rent pu zzle, ho w-

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 285 McCormick affirmed in his article that proportionalism makes precisely this point, imputing to Veritatis Splendor, and to critics of proportionalism generally, a different view, one rather easy for him to criticize. In this way he avoids the real issue and conceals the weakness of proportionalism and consequentialism. This weakness, however, is that a consequentialist refuses to speak about “actions” or about intention involved in the choice of concrete actions; he or she only talks about intentions as related to foreseeable consequences, thereby describing, and continuously redescribing, “actions” from the standpoint of a value-balancing observer; in this way he arrives at what he calls the “expanded notion of object.” V/hen McCormick says, “Intention tells us what is going on,” he is perfectly right. But he neglects to ask: How are intentions shaped? Upon what do they depend? and, finally, What is, not intention and intentionality, but intentional action? Intentionality and “Intentional Actions “: The Implicit Physicalism of Proportionalism Perhaps the reader of my article on Veritalis Splendor will remember the example of “arm rising,” “greeting,” and so on. It was a simple example--inspired by Wittgenstein and Anscombe--of showing how intentional actions are structured. I asserted: ever, is easy: The ob ject, its intentional element included, is first an ob ject of reason, and in this sense it is prior to choice, insofar as cho ice is an act of the will shaped by reason. That is the point of Aquinas’s teaching. See the following statements from the Prima seeundae: bonum per ration em repra esentatur volun tati ut ob iectum ; et in quan tum cadit sub ord ine rationis, pertinet ad genus moris, et causat bonitatem m oralem in actu vo luntatis (q. 19, a. 1, ad 3) ; bonitos voluntatis dependet a ratione, eo modo quo dep endet ab obiecto (q. 19 , a. 3) ; actus exterior est obiectum voluntatis, in quantum proponitur voluntati a ratione ut quoddam bonum apprehensum et ordinatur per rationem (q. 20, a. 1, ad 1). Again, the object, like the “species,” is a forma a ratione con cepta which includes the cognitive or rational element of intention, purpose . For mo re details, see Rho nheimer, Natur als G rundlag e der Mo ral: Eine A usein and ersetzu ng m it auton om er M oral und teleo logischer Ethik (Innsbruck-Wien: Tyrolia, 1987), 317 ff., and also Pra ktische Vern unft und Vernü nftigkeit der Pra xis.

__________________________________________________________________ 286 MARTIN RHONHEIMER The so-called “absolute prohibitions,” that is normative propositions which indicate that certain, describ able actions may never be licitly chosen and willingly performed, therefore relate to actions described intentionally. It is impossible to do this independently from the content of the acts of choice which relate to such actions. (32)

I have always conceded that proportionalism and consequentialism in Catholic moral theology have aspired to overcome the limitations and flaws of a traditional physicalist understanding of the “moral object.” 13 At the same time, however, I have contended that they have not succeeded because they have overlooked, and thus conserved, the basic error inherent in this tradition: to fail to understand human acts as embedded in an intentional process, that is, to fail to understand them from the perspective of the acting person. This can be seen very well in the case of Josef Fuchs (one of McCormick’s chief witnesses for the proportionalists’ innocence). According to my judgment, Fuchs speaks about “intentions,” but he does not seem to have a notion of what an intentional action is. He speaks only of (premoral) “physical acts “or behavioral patterns (realized, performed, etc.) to which he adds intentions (as a “premoral” element!). What Fuchs calls the “act” in itself or the “act as such” has no moral identity. Only the combination of the three premoral elements “act,” “circumstances,” and “ intentions “ becomes for him a moral whole. The problem is that “physical act” plus “ intention” (defined by some “reason”) will never result in an “intentional action.” “Intentional action” is a concept belonging to action theory, not to moral casuistry. It is not part of a theory about how to combine “reasons” and “intentions” in order to justify an action normatively (that is, to know whether it is “allowed” and right or “illicit” and wrong). The concept of “intentional action” expresses the very nature of human acting. So one has to talk about the acting person and about what is going on in his or her will when he or she acts. The discourse will be about choice and 13 See Rhonheimer, “Intrinsically Evil Acts; and the Moral Viewpoint,” 27, and the Introduction to Natur als G rundlag e der Mo ral.

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about intention involved in human acts, that is, in chosen acts (or behaviors, to use the encyclical’s term). Let us have a look at Fuchs’s well-known article, “The Absoluteness of Moral Terms.” 14 In this article, Fuchs argues that human acts” are composed of three elements: the (physical) act; special circumstances; and the intention. He first points out correctly that: “ Morality, in the true (not transferred or analogous) sense, is expressible only by a human action, by an action which originates in the deliberate and free decision of a human person.” 15 So a human action, Fuchs continues, mus t be performed “with the intention of the agent.” He then adds the following example: One may not say, therefore, that killing as a realization of a human evil may be m orally good or morally bad; for killing as such, since it implies nothing about the intention of the agent, cannot, purely as such, constitute a human act.16

The problem here is that “killing as such” is not an act, not even an “act as such,” because “as such” it is not described as a chosen act, that is, as an act that is the object of choice. Of course, “killing” as behavioral pattern (putting another person to death) could also be the performance of a robot. Considered on this level, “killing” is nothing but a behavioral pattern defined by a specific outcome. But, we should ask, what is going on when John chooses to kill Harry (for whatever reason: either because John simply wants Harry to be dead; or because John wants his uncle Harry to be dead for the sake of getting an inheritance, or for the sake of revenge, or for the sake of marrying I-larry’s wife) ? The point is that “killing as such” is not conceivable as a describable action, as if this could be understood apart from intention. If John kills Harry, he already has, in choosing the kill14 Gregorionum 52 (197 1) ; reprinted in Readings in M oral Theology N o. I: Moral Norms and Catholic Trad ition, ed. Charles E. Curran and Richard M cCormick (N ew Yo rk: Paulist Press, 1979), 94-137. 15 Fu chs, “The A bsoluteness of Mo ral Term s,” in Rea ding s in M oral Theolog y No . 1, 19. 16 Ibid.

__________________________________________________________________ 288 MARTIN RHONHEIMER ing, an intention: he wants Harry to be dead (this independently of whether he chooses “killing Harry” for its own sake or as a means to a further end). Fuchs, however, falling into the trap of dealing with acts as if they were pure events (“realizations of goods and evils”)’ continues: The conclusion in definitive terms is: 1) An action cannot be judged morally in its materiality (killing, wounding, going to the moon) without reference to the intention of the agent; without this, we are not dealing with a human action, and only with respect to a human action may one say in a true sense whether it is morally good or bad.17

From this it obviously follows that, prima facie, any “act” (in his sense of performing a behavioral pattern) can be justified, even if it brings about a (premoral) evil (e.g., “death”). This brings us to Fuchs’ second criterion: 2) The evil (in a premoral sense) effected by a human agent, must not be intended as such, and must be justified in terms of the totality of the action by appropriate reasons.18

Therefore, if I do not kill just for killing--without further reason besides the victim’s death itself --, then any killing could be, on principle, morally justified, provided there are “appropriate reasons.” Or do I somehow grossly misunderstand Fuchs? In this way, we are presented with an action analysis in which “acts” are simply physical events (‘’ realizations of goods and evils “or of “lesser evils “) to be given a moral character by intentions that justify these performances on the ground of “appropriate” (commensurate) reason. The acting subject focuses exclusively on the overall outcome of his or her doings, not on what he or she concretely does. The acting subject disappears as a subject that chooses and thus willingly performs concrete acts, acts that are not simply events causing consequences, but proximate ends of a choosing will.19 17 Ibid., 120. 18 Ibid. 19 Of co urse, I have never said that proportionalists explicitly hold such a causal-eventistic concept of action (since it is obviously absurd). Rathe r, my criticism was based on sho wing that they hold such a conc ept implicitly--be-

__________________________________________________________________ A REPLY TO RICHARD MC CORMICK 289 Fuchs sums up his argument by asserting: A moral judgement is legitimately found only under a simultaneous consideration of the three elements (actions, circumstance, purpose), premoral in themselves; for the actualization of the three elements (taking money from another, who is very poor, to be able to give pleasure to a friend) is not a combination of three hu man actions that are morally judged on an individual basis, but a single human action.20

The example given by Fuchs, of course, is revealing and confirms what I reproach. The problem is that “taking money from another” is not a good description of a “chosen kind of behavior.” A better description would be: “Appropriating money, taking it from its legitimate owner, against his will.” This is an intentional description of an action called “theft.” It has its moral form independently from whether the acting person has this or another “purpose” (intention), and from whether the outraged person is poor or not. Provided he or she in fact is poor, then the theft may be more condemnable and called “mean.” If the purpose is frivolous (“to give pleasure to a friend”), then the whole theft will be a frivolous action in addition. Such a theft, however, will not only be a frivolous one, but also, by its very object, an unjust one! If the purpose (“further intention”) is laudable, the intention remains laudable, but not the action as such, which remains unjust, though it probably will be, despite its wrongness, more understandable. In any case, on the whole it will be an evil action, malum ex quocumque defectu. On the grounds of Fuchs’s and McCormick’s methodology, however, these kinds of differentiations are completely ruled out in favor of a uniform overall judgement about “rightness” or “wrongness” of the act. To sum up, this methodology has three main characteristics. First, it confounds the intentionality involved in actions with the cause otherwise their position would not be coherent--and that this demonstrates that their position is erron eous. Consequently I argued that they sho uld pay mo re attention to action theory. See Rhonheimer, “Intrinsically Evil Acts’ and the Moral Viewpoint,” 27 ff. 20 Fuchs, “The Absoluteness of Moral Terms,” 121.

__________________________________________________________________ 290 MARTIN RHONHEIMER reasons one might have to judge certain outcomes as desirable. Proportionalism, of course, does not forget intention or intentionality, but it reduces “action” to “intending” and to “having appropriate reasons.” What is lacking is an intentional concept of action itself. For proportionalists, action remains a purely physical event that realizes the state of affairs one has a “reason” to bring about. Splitting up human acts into “acts as such,” on one side, and “reasons” and “intentions related to foreseeable consequences,” on the other, proportionalists seem to assert that choice proceeds on a double track: One first chooses, on the grounds of appropriate reasons, the state of affairs to be brought about, and afterwards the physical “act as such” that will cause it (e.g. “killing as such”) is chosen. The second choice--according to the theory--receives its moral species exclusively from the first (“as such,” it has none) ; it has a purely instrumental relation to the first. That is precisely what I would call an “eventistic” and thus non-intentional notion of action. The second characteristic derives from this: The “basic action,” the concrete act or behavior immediately chosen and then referred to whatever end, is not conceived as an intentional action. This is a very important point, because I take the “ object of a moral act to be precisely the content of what I have called an “ intentional basic 21 which itself can be distinguished from further intentions. This inability to isolate the basic intentional content of actions in relation to further intentions leads to the third feature of proportionalism, what McCormick calls the “expanded notion of object,” an “object” that is to be understood as being already the result of a process of weighing and “commensurating” all foreseeable consequences. The “expanded object” thus contains the intentions that define what in a morally significant sense the acting person is doing (and so, prima facie everything becomes morally possible, provided there is an ap21 See R honheimer, La p rospettiva d ella m ora le, 39, 85 ff., 239 ff. The term “basic action” was first introduced by A. C. Danto (“ Basic Actions,” American Philosophical Quarterly 2 [1965] :141-148), but in quite another sense, i.e. not referring to intentiona l action.

__________________________________________________________________ A REPLY TO RICHARD MC CORMICK 291 propriate reason). The expanded notion of object, however, in reality is equivalent to the abolition of the notion of object altogether, for the very notion of “ object “ necessarily implies a distinction between the basic intention that characterizes the object and further intentions. McCormick’s “Expanded Notion of Object” The problem of the proportionalist “expanded notion of object “ can be well illustrated with the case of Paul Touvier, a French Nazi collaborator in the Vichy regime, recently con-demned, who was ordered to shoot seven Jews on June 28, 1944. On trial fifty years later, Touvier argued that both he and the chief commander of the militia of Lyon knew that Gestapo chief Werner Knab was planning to execute a hundred Jews in reprisal for the Resistance’s killing of Philippe Henriot, the head of Vichy’s propaganda organization. By convincing Knab to execute only thirty, and then in fact executing seven Jews, Touvier argued that they had in fact prevented the execution of one hundred desired by the Gestapo Commander. The key point here is their argument that what they did in reality (the morally relevant “object” of their doing) was not kill seven Jews, but save the lives of ninety-three of them. That is an argument based on an “expanded notion of object.” 22 The corresponding reasoning that would, in proportionalist terms, justify such an action begins by affirming that killing as such “--that is “ without reference to the intention of the agent “--is neither good nor evil, but only the “ realization of a (premoral) human evil” that can be justified, provided one does not directly intend this evil as the goal of the action, and that there be a “commensurate reason.” Taking into account “the whole of the action,” circumstances and foreseeable consequences, Touvier came to the conclusion: If I do not kill the seven, then one hundred (these seven probably included) will be killed. Therefore, in killing the seven (which as such is beyond good and evil), I can save ninety-three Jews. Thus Touvier rea22 Or was it, mistakenly, not expanded enough?

__________________________________________________________________ 292 MARTIN RHONHEIMER soned: the morally relevant “object” of my action--that is, what I am really doing-has to be called meritorious or at least responsible and justified as life-saving. Although a proportionalist can produce reasons why Touvier should have refrained from killing the seven Jews, this will be a consequentialist argument and will be accomplished by an even greater expansion of the object. For example, one could argue: “Acting in that manner could have foreseeably weakened consciousness of the criminal character of the Nazi Regime, which would have cost the lives of even more Jews in the long run.” The problem here is not the result of the proportionalist reasoning, but rather its very structure. It is precisely the methodology of weighing the consequences, taking into account premoral “values “--in this case, lives of innocent human beings--so as to determine whether or not there is a “ commensurate “ reason for “ realizing the premoral evil “ of killing them. Why not simply admit that the intentional killing of innocent persons is immoral, unjust, criminal, that one is never allowed to do such a thing? According to proportionalism, however, what one chooses are mainly the consequences of one’s actions (actions therefore conceived as simple behavioral performances), but not the actions themselves. As Fuchs put it: The object of the ethical decision for an action is, therefore, not the basic (e.g. physical) act as such (in its ethical relevance, such as killing, speaking falsehood, taking property, sexual stimulation), but the entirety of the basic act, special circumstances, and the chosen or (more or less) foreseeable consequences.23

A problem here is that everything depends on your preferences-- including the determination as to which reasons are commensurate and which are not. Yet is preference ever sufficient as a basis for moral judgement? Who would not prefer the killing of only 23 Josef Fuchs, “Das Problem Todsünde,” Stimmen der Z eit 212 (February 1994 ) 83 (the E nglish translation is that offered by McCo rmick in “Some Early Reaction to Veritatis Splendor,” 500). In this 199 4 article ab out Veritatis Splendor, Fuchs restates the same basic position he had presented in his article written more tha n twenty years earlier.

__________________________________________________________________ A REPLY TO RICHARD MC CORMICK 293 seven, instead of a hundred innocent people? Who would not, to use McCormick’s famous wording, prefer “to choose the lesser evil “ ? 24 Of course, I prefer the lesser evil, too. I am happy when I learn that not one hundred but only seven innocents were killed, as I am happy to know that only seven instead of one hundred persons were killed in an air crash or by an earthquake. But I will not choose and willingly perform an evil action because I think it to be less evil then another and because otherwise foreseeably somebody else would commit the greater evil (I shall try to prevent that, of course). The proportionalist will rebut: “Sorry, you did not understand me. I meant that choosing the lesser evil signifies that this action was precisely the good one.” I then would reply: “So you really think that when choosing and freely performing an action, nothing else happens than what happens in an air crash or an earthquake? Are the evil results of certain actions somehow simply given, beyond both my power to change and my responsibility? Or are they rather intrinsically bound up with the action that I perform?” On the grounds of this and similar examples, we can better understand why Veritatis Splendor, n. 77 pronounces a very important warning, a warning overlooked, it seems, by most proportionalists: The weighing of the goods an d evils foreseeable as the consequence of an action is not an adequate method for determining whether the choice of that concrete kind of behavior is “ according to its species,” or “ in itself,” morally good or bad, licit or illicit.

Of course, in the light of the preceding example this statement is perfectly intelligible. The proportionalist “ expanded notion of object,” however, renders it meaningless because in proportion24 Cf. John Finnis, Fun dam entals of Eth ics (W ashington: G eorgetown, 1983), 93 ff. For McC ormick, choosing the lesser evil is simply a self-evident principle, “beyond deba te: for the only alternative is that in co nflict situations we sho uld choose the gre ater evil, which is patently absurd “ (Doing E vil to Achiev e Good , ed. Richard McCormick and Paul Ramsey [Chicago: Loyola, 1978], 38). This of course also means that we choose and therefore are responsible for the foreseen consequences of our omissions.

__________________________________________________________________ 294 MARTIN RHONHEIMER alist terms there simply is no possible choice of a concrete kind of behavior that could be called morally bad “ by its species” or “in itself “ before the foreseeable consequences have been weighed--consequences that change from case to case-and before a judgment about commensurate reasons has been reached. The problem here is with what are called intrinsically wrong or evil actions; in such cases already the very object should serve as an indication that one should not persist along this line of action. McCormick avoids facing this problem directly by employing examples like “one takes a vacation trip in order to commit adultery” to maintain that only in such cases can one discern “an intention in addition to the object,” because “there are two distinguishable actions here, each with its own object.” 25 This is then a simple means-end relation. In the example, the basic action is perfectly indifferent or even good, but not the end. Yet is not the situation radically different in the case, for example, of one who commits adultery in order to rescue an innocent person and save his life and one who kills seven Jews in order to save the lives of ninety-three? Are there not also “two distinguishable actions here, each with its own object”? McCormick’s choice of examples serves to avoid the real issue. Proportionalists thus describe and redescribe concrete chosen basic actions, without looking at what the acting person chooses on the level of action (or “means “) ; rather, they concentrate on what he or she chooses in the order of consequences and on the corresponding commensurate reasons, all of which finally constitute the “expanded object.” As we have seen, however, the expanded notion of object is in reality not a notion of “object” at all, but precisely its abolition, because “object” means the basic intentional content of a human act, distinguishable from further intentions.26 To borrow an example from William May, it would be more truthful to say that Macbeth killed Duncan instead of saying that 25 McCormick, “Some Early Reactions to Veritatis Splendor,” 498 . 26 Th ese, of course, are also “objects” of the will. See John Finnis, “Object and Intention in Moral Judgments According to Aquinas,” The T hom ist 55 (1991): 1-27.

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 295 Macbeth stabbed Duncan and as a result Duncan died. Stabbing Duncan “as such” is not a sufficient description of a chosen kind of behavior or of an action. A description of the object must indude, in Aquinas’s terminology, both the materia circa quam,27 matter about which,” and the “form” of the action: Macbeth stabbed Duncan for the sake of causing his death, or, because he wanted him dead (that was precisely his reason and his intention or purpose). We rightly call this kind of act an act of “killing.” That is what he chose and what he did; that is the object of his action. In order to express our moral disapproval we also call it “murder.” It would not make any sense to say: Macbeth chose stabbing Duncan with the further intention of causing his death, of killing him. You cannot describe “stabbing Duncan” as a reasonable, freely chosen action without indicating an intention. This way of describing an act by the intention involved in it is not always truthful. Thus it is not truthful to say that Touvier “saved ninety-three Jews “ instead of saying that “ Touvier killed seven innocent Jews, and as a result ninety-three were saved.” We cannot call this action an act of “life saving” merely because the foreseeable result (the sparing of the ninety-three) was a “commensurate reason” for shooting the seven, and thus “life itself” was “ better served.” We are not calculating with quantities of the “ good of life,” but relating to concrete living persons. To speak truthfully, Touvier killed seven innocent people (he shot at them with the intent of ending their lives) which is murder--with the further intention of preventing the killing of a hundred. Thus it is not truthful to say that abortion, given that it means killing an innocent human being, is either an act of life saving when done for the sake of saving the mother’s life or an act of saving family stability in certain difficult family situations. Nor can the manipulation and sacrifice of human embryos for the sake of health research (considered as a commensurate reason) be taken as simply an act of health care by virtue of its (expanded) 27 Sum ma theol., I-II, q. 18 , a. 2, ad 2.

__________________________________________________________________ 296 MARTIN RHONHEIMER object. The notion of expanded object does not work; or, better, it works for anything whatsoever. Again, everything depends on the preferences one has.28 McCormick conceals the problem by adopting examples that, in themselves, are precisely not examples of “ expanded objects” (and that I would call intentional basic actions). Let us take the example of masturbation.25 Of course, stimulation of the genital organs “as such” is not a kind of behavior that can be chosen or willingly performed by a human person; a basic reason, intent, or purpose is needed.30 That is why the Catechism of the Catholic Church very correctly writes in n. 2352: “ By masturbation is to be understood the deliberate stimulation of the genital organs in order to derive sexual pleasure.” That seems very clear. If one chooses the same behavioral pattern (stimulating genital organs) in order to get semen for fertility analysis, then one simply chooses an action that is different by its object. What happens, however, if one chooses to masturbate for the sake of psychological release? Is the action properly described by calling it “deliberate stimulation of the genital organs in order to have psychological release ? “ I think not. Rather, what one deliberately chooses is “the stimulation of the genital organs in order to derive sexual pleasure” (= object), and this with the further intention of getting psychological release. The key here is that the release obviously does not derive from stimulating genital organs “ as such,” but from the corresponding sexual pleasure. Thus what the intentional basic action (or its object) turns out to be is not simply a question of preference. 28 In the proportionalist schema, one simply calls “object” what one conc ludes to be morally relevant, “what one wanted to condemn as wrong ex objecto” (McC ormick, “Som e Early Reactions to Veritatis Sptendor,” 504 ). In this way, one can simply keep expanding the object of one’s action so as to justify one’s preferences and reach the result corresponding to one’s personal intuitions about what is morally relevant. 29 Cf. his example of organ transplantation, as distinguished from “killing for world peace” (“ Some Early Reactions to Veritatis Splendor,” 504). 30 Likewise, one simply cannot choose to “ remove a kidney from a living donor” purely “as such,” without any reaso n that co nstitutes it as a human act.

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 297 At the same time the behavioral pattern alone does not decide everything and is sometimes ambiguous. Consider the following situations. John, a college student, for the sake of forgetting his girl-friend troubles drinks lots of whisky in order to induce a temporary loss of consciousness; in other words, he gets drunk. This is an act of intemperance, drunkenness. On the other hand, Fred, a soldier, for the sake of avoiding the pain of an emergency operation, drinks the same amount of whisky in order to induce a temporary loss of consciousness; in other words, he undergoes anesthesia. The behavioral pattern may be exactly identical,3' but without indicating an intention (a “ Why?”), it is impossible to describe properly what John and Fred are doing, i.e., what, in a basic sense, they choose.32 If you remove any intention or purpose whatsoever, there is no action. Thus in every case you arrive at a basic level, which is the level of intentional basic actions.33 There are also adherents of a non-intentional concept of object who fear that this consideration of intention opens the way to subjectivism: Any behavioral pattern, they object, could serve for any object whatsoever: “by shifting intention to and fro, the agent constitutes out of whole cloth the moral properties of his act.” Moreover, their concern is “ whether the norm of acts exists prior to human choice, or whether it only comes into being with our consideration of proportions, circumstances, and consequences. “36 And finally: Is it possible to say that intention is so important; should we not hold “that the concrete nature of acts tells us whether an intention is morally good or bad”? 31 For an intentional notion of contraception, see Rhonheimer, “Contraception, Sexual Behavior, and Natural Law. Philosop hical Foundation of the Norm of ‘Humanae Vitae,’” The L inacre Quarterly 56, 2 (1989) 20-5 7. 32 C f. G. E. M. Anscomb e, Inten tion, § 22. 33 The opposite is also possible, i.e., different or even contrary behavioral patterns, but the same intentional action, e.g., “the action of killing” and “the omission of a po ssible ac tion of life saving.” The ob jects of both choice s are identical. 34 E.g., Russell Hittinger; see his article, “ The Pope and the Theorists,” Crisis (December 1993) 31-36. 35 Hittinger, “The Pope and the Theorists,” 34. 36 Ibid., 33-34. 37 Ibid., 34.

__________________________________________________________________ 298 MARTIN RHONHEIMER These formulations are, however, somewhat misleading. First, the “ nature of an act “ necessarily includes an intention, because there is no human act without an intention formed by reason. And that is precisely why Aquinas calls the species of an act, which is determined by its object, a forma a ratione concepta, a “form conceived by reason”; 38 likewise, he defines the good that is by nature specific to each virtue as a good formed “ex quadam commensuratione actus ad circumstantias et fin em, quam ratio facit, “from a certain commensuration of the act to circumstances and to the end, a commensuration produced by reason.” Such formulations seem to justify the position of Fuchs and McCormick, but only seemingly, however, because the underlying understanding of human action is different. What Aquinas and the tradition say is: One cannot simply “ choose” a (physical) act and additionally order it to any intention formed by commensurate reasons that would justify the act. To deny this does not mean, however, that a human act could be described without referring to intention altogether. Secondly, we have quite an extended power to organize our actions intentionally, and thus in a sense to constitute the moral properties of our acts. But there are what I would call naturally given limits to this. Therefore, (provided sound perception) I cannot shoot at a person’s heart and truthfully say, “I love you,” meaning that I am doing this with the intent of doing good to this person. What is crucial to recognize is that not every behavioral pattern fits for any intention. For example, I cannot shoot at a person and, e.g., have the intention of healing his wound. To have a human act one needs to have a basic intention; on this much we agree. But can one, as Hittinger fears, simply shift intention to and fro”? Given a determined situation (which is precisely given and does not depend on the subject’s will or preferences), it is not simply up to me to decide whether my shooting at a person’s heart is or is not an action of punishment. 38 Sum ma theol., I-II, q. 18 , a. 10. 39 In II S ent., d. 39 , q. 2, a. 1 . “Act” here means the physica l or “ma terial “ part.

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 299 And John who drinks to forget his girl-friend troubles simply cannot reasonably intend his act to be an act of anesthesia. Fred, on the other hand, who “does the same thing” cannot intend that what he does be an act of drunkenness. There are given contexts (shaped by circumstances and recognizable, as a morally significant contextual unity, only by practical reason) that, in a basic sense, decide what kind of intentions we reasonably can have if we choose a determined “kind of behavior,” independently from further intentions. From this it follows that even if there is no act (and no object) possible without an involved intention, what the intention reasonably can be does not depend on pure preferences, or decisions, or any other power of the subject. This is (in many cases, but not always) simply given.40 Thus Paul Touvier had no power to decide what would be his basic intention in killing seven innocent people. To describe his action properly, one must include the purpose or the intention, “wanting them to be dead” (even if he would regret it; that is only a motivational side-feature, but not the very intention of his acting). Touvier clearly wanted the seven to be killed; he chose their deaths for the sake of some greater benefit.41 If someone should wonder why “intention” should be included in the “object” or in the “ intrinsical nature of an act,” he also should wonder why generally things like “will,” “intellect,” reason,” etc., should be included in human nature. It seems rather obvious that the very “nature” of the acts of a spiritual being--moral acts--includes spiritual elements as ‘’ purposes or “intentions” of the will, shaped by reason, and not only observable behavioral patterns. Is this not precisely the constant teach40 It belongs to the virtue of prudence to understand the contexts in which we act; see m y Natur als G rundlag e der Mo ral, 346 ff., and La p rospettiva della m orale, 288 ff. 41 This is precisely what does not occur in the case of capital punishment (the argument applies also if one is for other reasons opposed to capital punishment), nor in that of legitimate selfdefense, nor in that of killing in a just war (which must always have a defensive, anti-aggression character).

__________________________________________________________________ 300 MARTIN RHONHEIMER ing of Aquinas? 42 Why should “realizing the evil of death” as such be taken as the adequate description of the object of a human act or express its “intrinsical nature,” when exactly the same thing could be brought about by an earthquake or by a robot? Why should simple “ solitary stimulation of genital organs as such “ be the definition of the object and the intrinsical nature of a human act, when this contains absolutely no indication as to why one would do such a thing? One can therefore describe concrete choices of kinds of behavior as wrong or evil independently from further intentions. Such descriptions, however, always include a basic intention, an intention that itself presupposes a given ethically relevant context without which no intention, formed by reason, could come into being. This has nothing to do with the “expanded notion of object.” But it includes a certain complexity that is due to the plurality and multiplicity of virtues that in turn reflect human life and its richness in relations between persons, including the differences of ethically relevant practical contexts. The Shaping of Intentional Basic Actions and the Virtues: Some “Manual Cases” To explain accurately what I have just said at the end of the preceding section, I should explain how practical principles are generated in a moral theory based on the “ends of virtues.”43 While my approach grows out of a tradition rooted in classical virtue ethics, proportionalism is entirely situated in the context of the manualistic tradition.” In opposition to this classical tradi42 See Sum ma theol., I-II, q .1, a. 3 ad 3: Fines morales accidunt rei naturali; et e conve rso ra tio naturalis finis accidit morali. 43 See La p rospettiva d elta m orale, chapter five. 44 In ord er to understand co rrectly the Catho lic tradition of mo ral teaching, ho wever, one must recover the classical standpoint of virtue ethics. From this standpoint, actions are not considered from the outside--as processes that cause, b y combining (prem oral) good s and evils, foreseeab le states of affairs--but rather in terms of “my” intentional relating to good and evil in different ethical contexts (relation s between p erson s, to community and communities, to

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 301 tion, proportionalism provides, on the basis of modern consequentialism, a relatively uniform theory of decision making, one that can be summed up in some very simple key principles: “What one does, considered as such, is not yet morally decisive; whatever one does, however, one ought never directly to intend premoral evil; rather, one should always act with a commensurate reason, so as to maximize benefit and/or to minimize harm or evil.” In order to justify his position, McCormick adduces a whole range of classical examples, self-defence, masturbation, lying, contraception, sterilization, theft.45 Insofar as he deals with these problems as a proportionalist, however, he simply begs the question. By affirming that to describe a moral human action an intentional element is required, McCormick asserts what nearly all hold. There is more, however, to the proportionalist position. McCormick affirms that proportionalists “are saying that an action cannot be judged morally wrong simply by looking at the material happening, or at its object in a very narrow and restricted sense.” 46 Yet by identifying the “ object in a very narrow and restricted sense” with the “ material happening,” he has already accepted the physicalist fallacy.47 So he is necessarily unable to understand how an intentional basic content can be formed. Like Fuchs, Knauer, et al., he will only look at material happenings (the act “as such”) and then at all the intentions (among myself and my body, to God etc.), so that in choosing certain concrete acts or be haviors my will becomes an evil will, whatever the consequences. Only in this perspective can one understand the shaping of “intentio nal basic actions” (which correspond to different “moral species” of acts and “moral ob jects”). 45 See also his article, “Killing the patient,” The Tab let (October 30, 1993): 1410-11. 46 McCormick, “Killing the patient,” 1411. 47 McCo rmick com mits the same error, even m ore explicitly, in his article, “Geburtenreg elung als Testfall der Enzyklika,” where he asse rts that the “object in a narrower sense “ is identical with the Thomistic materia circa quam (Moraltheologie im Abseits? 271 -284) . This is clearly false and shows a physicalist reading of the tradition.

__________________________________________________________________ 302 MARTIN RHONHEIMER which those that will be morally decisive will be those for which one is able to adduce commensurate reasons).48 What I maintain is that it is possible both not to be a proportionalist and simultaneously to assert that there is a difference in basic intentional content, i.e., the object, in the case of the following actions: --simple killing for any end whatsoever (an action against justice), even if the ulterior end is saving one’s life (this is illicit murder) --(legitimate) killing in self-defense (killing praeter intentionem) --(carrying out of) capital punishment (an act of punishment, which may be regarded as unjust, but which is by its object different from simple killing for any further end whatsoever); --killing of combatants in war, on the battlefield.

These are not actions to be defined differently only because of different” reasons” one might have for realizing them. Not only their intentional content, but also their very intentional structure is very different in each case. Since they represent different intentional basic actions, they also are different by their object. Take for example the difference between “ self-defence “ and “the choice of killing in order to save one’s life.” On the level of “ reasons “ regarding the further end, both cases are identical: the reason for acting is to save one’s life. But if you look at the action not from outside, but from the acting person’s perspective, you will notice that there is a different choice (and so there is a different object, too). In legitimate self-defence, what engenders my action is not a will or a choice for the aggressor’s death. A sign of this is that I only use violence proportionate to stop his aggression. This may lead me to kill him (praeter intentionem), but the reason for my action is not wanting him to be dead (for the sake of saving my life); rather it is wanting to stop his aggression. Thus there is a difference of intention on the level of 48 We have already seen in the Touvier case that this methodology does not work. Nor did it work in the case of masturbation, or drunkenness. The problem with killing is that there are some apparent “exceptions,” like capital punishme nt, killing in war, and killing the agg ressor in selfdefense.

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 303 concrete chosen behavior, and that means, on the level of the object.49 Or, take “killing on a battle-field”: Am I a murderer or simply a soldier who is fighting against an aggressor? Provided the war is what one calls a just war (ultima ratio--defence against an aggression), it entirely depends on what is going on in my heart, i.e., whether I want the enemy soldier to be dead, or simply to stop his aggression and to win the battle. Therefore, if as a soldier you do not want to be a murderer, you must care for wounded enemy soldiers. This shows that the object of your acting--the intention involved in your action--obviously was not wanting them to be dead, not even in the moment of battle, even if killing them in the moment was the foreseeable and necessary physical outcome of violence proportionate to stop their aggression. With theft it is slightly different. Theft refers to property. Property is not a natural or physical entity, but a moral and legal one. Property is not simply “what I have in my hands,” but “that to which I am entitled” or “that to which I have a right.” Such entitlement and rights, in a given situation, do or do not exist (and this precisely does not depend on consequentialist reasoning). But situations may change: they are contingent. Unlike a person’s life, property is not an unchangeable matter. It is a contingent matter, relativized by higher principles of justice. So there are situations of extreme necessity in which no one is reasonably entitled to say to the starving: “ This is my property; you have no right to it.” If the starving one takes what he needs 49 This corresponds to the traditional distinction between “direct” and “indirect” killing, a distinction that reflects the easily misleading ambiguity of the word “killing.” This is precisely what Aqu inas very explicitly explains in the famous article 7 of Sum ma theol., II-II, q. 64. What proportionalists never understand in their reading of this article is that Aq uinas he re not only maintains that actions are m orally shaped by id quod in tenditur, but also that the shaping of intentions depen ds on w hat you a re do ing, in this case--on the amount of violence you use to stop the aggression. B ut in any ca se he says: illicitum est quod homo intendat occidere hominem\ ut seipsu m d efend at. It is not a question of “proportionate reason,” but of intention involved in action.

__________________________________________________________________ 304 MARTIN RHONHEIMER to survive, it will simply not be the action we call “ theft,” meaning an action that is contrary to justice. Therefore one has to analyze intentional contents as belonging to the structure of virtues. Admittedly, the traditional manuals were not very careful in this. Their methodology was rather legalistic, focusing on the external features of actions, referring them to positive law, and only secondarily applying some corrections to recuperate important intentional aspects.50 In any event, it seems clear that justice related to property and related to life are two quite different matters. Notice that my arguments adopted so far have nothing in common with a proportionalist reasoning. The question was not whether there was a commensurate reason to realize the premoral evil of appropriating another’s property, so that the act would not be “theft” anymore. Rather, the question was whether or not in a given practical context there existed a title of property (this certainly is not a question of commensurate reason or of utility). Once the question of rights is settled, however, these rights may not be overruled by consequentialist reasoning.51 If one applies the proportionalist methodology of decision-making to these questions, one will never discern the differences, even though in certain more simply structured cases one will probably arrive at the same result. As a consequentialist, one arrives at this result by speaking only in terms of physical acts, foreseen consequences, and commensurate reasons, a level of discourse that will prove profoundly misleading in more serious questions, as 50 Thus St. Aiphonsus de Liguori treated natural law as if it were a positive legal codex, teaching that epieik eia could be applied to it; this meant, however, not negative precepts but those positive precep ts that A quin as describes as valid only ut in pluribu s (as deposita sunt reddenda). Aipho nsus’ spirit is absolutely correct, but his methodology is of course misleading (he tries to argue within a legalistic framework). St. Alphonsus is today abused by authors who are nevertheless interested in maintaining the “legalistic” app roach, so as to apply epieikeia even to negative precepts, without however noting the enormous difference. See Gunter Virt, “ Epikie und sittliche Selbstbestimmung,” Moraltheologie im Abseits? 203 -220 . 51 S ee M acIntyre , “Ho w can we learn what Veritatis Splendor has to teach?” 179-182.

__________________________________________________________________ A REPLY TO RICHARD MC CORMICK 305 illustrated by the Touvier case. Moreover, that is not how upright people really act and live. We act in given circumstances and personal relationships that form basic intentional contexts and corresponding intentional basic actions. Some of them are simply evil by their basic content. They divert the acting person from human good, and make the will and the heart evil. The “Key Question” and the Encyclical’s Alleged “Misrepresentation” of Proportionalism At this point we finally arrive at what McCormick calls the “key question.” Why, he asks me, in choosing to kill a person or deceive a person, does one necessarily “take a position with one’s will with regard to ‘ good ‘ and ‘ evil’ “? While some elements of my answer are contained already in what I have explained in the foregoing sections, to answer the question systematically I would have to repeat all that I have said about the misleading distinction, fundamental for proportionalists, between “ rightness” and “wrongness” of actions, on the one hand, and the goodness” and “wickedness” of persons and their actions, on the other. I invite the reader to have a second glance at the original article. Let me add, however, the following. Proportionalists say that an action is right if what one does is justified by commensurate reason. In this view, a person is a good person if he or she does not directly intend to realize a premoral evil, but intends to act so as to maximize goods or to minimize evils (“ in the long run,” Knauer would add), meaning to act responsibly by commensurate reasons. I consider this to be simply erroneous. In my article I wrote: It is one of the most important assertions of classical virtue ethics that there exist conditions for the fundamental rightness of actions which depend on basic structures of the “rightness of desire” and that it is therefore possible to describe particular types of actions, the choice of which always involves wrong desire. (20)

With regard to proportionalist decision-making theories (and their characteristic as “ rule ethics “) I then added that these theories

__________________________________________________________________ 306 MARTIN RHONHEIMER may not, on the level of the concrete performance of actions, include in their reflection the acting subject and his willingly “taking a position” with regard to “good” and “evil” in choosing this or that particular action.

So, if I choose to kill P, I simply set my will against a fundamental right of P, which is moral evil; if I choose to have intercourse with 0, to whom I am not married, I act against the truth of sexuality, harming my own integrity (in the case of simple fornication), or, in the case of adultery, I moreover violate faithfulness due to the person to whom I am married. This implies disorder of my free will, and exactly this we commonly call an evil will. If I choose to utter falsehood to a person, given a practical context in which speech acts are meant to be acts of communicative justice (which is not the case in war situations, aggression, etc.), then I am lying to my fellow man. This means setting my will against social ties due to this person, and this is disorder in my will, moral evil. The same, obviously, applies to theft. At the same time, the one who carries out a capital punishment does not do what he does because he wants the executed to be dead (this could be a further motive, but a condemnable one); he may even do it after having done everything to liberate him. This is an act of punishment, that is, of retributive justice.82 Following proportionalist methodology, one will not see, or not concede, the point because one omits focusing on what is going on in the acting and choosing person, precisely where moral evil comes about. Proportionalists are concerned with the reasons one might have to bring about certain state of affairs as the consequences of one’s doings; and only this allows a judgement about “right” and “ wrong.” That is why consequentialists discuss for example the question of whether it could be right to execute the innocent, instead of simply asserting: to execute an innocent per52 See R honheimer, La prospettiva della morale, 283; also, the helpful analysis by Agnes Heller, Beyond Justice (Oxford: Basil Blackwell, 1987), 156 ff. I want to repeat that my argument does not yet settle the question whether capital punishment is a good or proportionate, and in this sense, just punishment; it only settles the basic objective meaning of the corresponding acts as actions of pun ishm ent or retributive justice.

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 307 son for whatever reason is evil by its object. Thus precisely what proportionalists do not want to acknowledge is that, according to the encyclical’s quotation of n. 1761 of the Catechism of the Catholic Church there are certain specific kinds of behavior that are always wrong to choose, because choosing them involves a disorder of the will, that is, moral evil, and that, according to Veritatis Splendor’s key sentence in n. 79, one must therefore reject the thesis, characteristic of teleological and proportionalist theories, which holds that it is impossible to qualify as m orally evil according to its species--its “object “--the deliberate choice of certain kinds of behavior or specific acts) apart from a consideration of the intention for which the choice is made or the totality of the foreseeable consequences of that act for all persons concerned.

Obviously, the encyclical goes right to the point, and McCormick’s reaction, along with similar reactions, confirms that the Pope was right. This relates to that for which McCormick most reproaches Veritatis Splendor, its “ misrepresentation” of proportionalism,53 namely, the encyclical’s assertion in n. 76: “ Such theories however are not faithful to the Church’s teaching, when they believe they can justify, as morally good, deliberate choices of kinds of behavior contrary to the commandments of the divine and the natural law.” McCormick repeatedly says that with this the encyclical gravely misrepresents the proportionalists’ views, reproaching them falsely “that [the proportionalist position] attempts to justify morally wrong actions by a good intention.” This is simply not true. McCormick’s complaint would be justified if the Pope held the same understanding of the nature of natural and divine law that is proper to revisionist moral theology. Unlike proportionalists, however, the encyclical holds that in natural and divine law there are included certain negative precepts that precisely refer universally to certain kinds of behavior that one never may choose. The encyclical does not reproach 53 McCormick, “Some Early Reactions to Veritatis Splendor,” 49 0 ff., 497; “Killing the Patient,” 1411 .

__________________________________________________________________ 308 MARTIN RHONHEIMER proportionalist theologians for wanting to justify by good intentions what is already determined to be morally wrong. The reproach is that proportionalism is a theory by which, in concrete cases, you can justify as morally right what the Church teaches to be universally, sem per et pro sem per, wrong. The Pope therefore reproaches proportionalism for denying that there are certain negative precepts that refer universally to certain kinds of behavior that one may never choose (killing the innocent, adultery, fornication, theft, contraception, abortion, lying, etc.). In fact, what the encyclical rejects is the proportionalist notion of expanded object that allows one in every concrete case to “ redescribe” concrete actions, reducing the commandments of law simply to forbid certain immoral attitudes, but not choices of determined and intentionally describable behaviors or acts. Therefore Veritatis Splendor does not here affirm something about the formal structure of proportionalist moral judgement (imputing to proportionalists a theory that seeks to justify the principle, “One may do good evil that good come about”); the reproach is a material one, that is, that proportionalism is a theory according to which such universal negative norms cannot exist, so that, according to this theory, one comes to declare to be morally right what natural and divine law, according to the Church’s teaching, declares to be morally wrong and evil. Thus Veritatis Splendor’s assertion in n. 76 does not characterize proportionalism as a theory, but it characterizes the result of this theory, its material implications, as leading to moral judgments explicitly contrary to what the Church teaches as morally wrong and evil. As evidence for this judgement, I refer again to the example of Fuchs, who wrote in 1971: “What value do our norms have with respect to the morality of the action as such, prior, that is, to the consideration of the circumstances and intention? We answer: They cannot be moral norms, unless circumstances and intention are taken into account.” 54 Some pages later, referring to norms related to actions that “could never be objectively justified,” he concludes: 54 F uchs, “T he Absolutness of Mo ral Terms,” 121.

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 309 Viewed theoretically, there seems to be no possibility of norms of this kind for human action in the inner-worldly realm. T he reason is that an action cannot be judged morally at all, considered purely in itself, but only together with all the “ circumstances” and the “intention.” Consequently, a b ehavioral norm , universally valid in the full sense, would presuppose that those who arrive at it could know or foresee all the possible combinations of the action concerned with circumstances and intentions, with (pre-moral) values and non-values (bona and mala ‘physica ‘).55

Of course, Fuchs--like others--neglects to distinguish here between negative (prohibitive) and affirmative norms, which would make all the difference. And so, in a recent paper, he even speculates that in a future, yet unknown time, the command “you shall not commit adultery” could change and no longer be valid without exceptions; there could be imaginable “rare exceptions, on the grounds of highly important reasons and with mutual consent.” 56 Similarly, it is not surprising that with regard to “ murder, adultery, stealing, genocide, torture, prostitution, slavery, etc.” McCormick cites with approval the argument of Lisa Sowle Cahill: “ These phrases, Cahill correctly notes, do not define acts in the abstract, ‘ but acts (like intercourse or homicide) together with the conditions or circumstances in which they become immoral.’ “ In their view, precisely because these “ conditions or circumstances “ can be discerned only in each particular case, the general norm indicating a species or kind of behavior tells us nothing definitive about whether the act is right or wrong, but merely provides us with a name for something of which we disapprove. Yet McCormick misses the point when he complains that Robert P. George “misrepresents proportionalists as maintaining that rape, murder, and adultery could be justified by a 55 Ibid., 124. 56 Fuchs, “D ie sittliche Handlung: das instrinsece malum,” Moraltheologie im Abseits? 183. Of course, for Fuchs this should not be called “adultery” any more; one would have to devise another name for it. 57 McCormick, “Some Early Reactions to Veritatis Splendor,” 492 ; the quo tation is from Cahill’s article, “Accent on the Masculine,” The Tab let 247 (December 11, 1993) : 1618-19.

__________________________________________________________________ 310 MARTIN RHONHEIMER proportionate reason,” 58 for what the critics of proportionalism are arguing is that the acts that proportionalists would not designate as “ adultery” or “ murder “ because of the “ conditions or circumstances are in fact precisely acts of “ adultery “ or “murder,” regardless of the new names given to such acts by the proportionalists. McCormick’s complaint simply begs the question. The notion of “expanded object” requires that any universally formulated norm be open to exception because of a “commensurate reason “ that redescribes the act in question. Proportionalism thus teaches that precisely on the grounds of intention, determined behaviors that are held by the Church’s teaching to be sem per et pro sem per immoral, evil, and wrong according to divine and natural law may be become “ right,” here and now-- when the “expanded object” is taken into consideration.59 The trick is precisely to affirm this by a theory that is immune against the reproach, “you are trying to justify evil means by good intentions,” since the very theory eliminates even the possibility of doing such a thing, for it argues that only evil intentions render an act evil and that a well-intentioned act is necessarily good. And that is why this theory is not only erroneous, but moreover dangerously confusing moral reasoning. Proportionalism is a methodology by which one in fact always can with good conscience act according to the principle “let us do evil so that good come about,” because the methodology gives one the conviction that, provided good comes foreseeably about, what you did was not evil at all, but just the morally right thing, so that the ominous principle does not apply in your case. Whoever nevertheless reproaches you for trying to justify, on the grounds of “good reasons,” what in reality is morally evil, will be “ misrepresenting” your position.

58 McCormick, “Some Early Reactions to Veritatis Splendor,” 487 . 59 This is clearly seen in Veritatis Splendor, n. 56, where the encyclical points out that acc ord ing to the methodology that it rejects “a certain concrete existential consideration . . . could legitimately be the basis of certain exceptions to the general rule and thus permit one to do in practice and in goo d conscience what is qualified as intrinsically evil by the moral law.”

__________________________________________________________________ A REPLY TO RICHARD MCCORMICK 311 McCormick said that the reason for what he sees as my error was probably that I had “taken one general description of consequentialism and applied it indiscriminately to all recent revisionist analyses.” I do not think this is the case. But even if it were true, McCormick’s position is still included in what I criticized in my article. And I also think that his position is one of those reasonably rejected by Veritatis Splendor.